IN THE MATTER OF ESTATE OF MICHAEL RUFUS MIGUE

FAMILY DIVISION

SUCCESSION CAUSE NO. 218 OF 2010

IN THE MATTER OF THE ESTATE OF MICHAEL RUFUS MIGUE - (DECEASED)

JUDGEMENT

1. PATRICIA NJERI ODHIAMBO one of the joint Administrators of the estate of the late MICHAEL RUFUS MIGUE filed in court a Summons for confirmation of Grant dated 14^th July 2017.  Annexed to that Summons was a schedule indicating the proposed mode of distribution of the estate.
2. The Protestor EVERLYN WAIRIMU NJOROGE who is a Co-Administrator of the estate, filed a Replying Affidavit dated 27^th September 2017 in which she objected to the proposed mode of distribution of the estate.
3. Hearing of the matter proceeded by way of Vive Voce evidence.  Hon. Lady Justice Achode (as she then was) heard the Protestors case.  Upon the elevation of the trial Judge to the Court of Appeal I took over the matter and heard the evidence of the Administrators.

BACKGROUND

1. This Succession Cause relates to the estate of the late Dr. Michael Rufus Migue (hereinafter the Deceased’) who died intestate on 2^nd April, 2009.  A copy of the Death Certificate Serial Number 172243 is annexed to the petition for Grant of letters of Administration Intestate dated 9^th July 2010.
2. The Deceased was survived by the following persons:-
3. Jane Wairimu Migue   - Daughter
4. Clare Ngonyo Migue   - Daughter (Deceased)
5. Patricia Njeri Odhiambo  - Daughter
6. Spereranza Wangari Migue  - Daughter
7. Yvonne Warya Dusabe   - Daughter
8. Ivy Wanjiku Migue   - Daughter
9. Everlyn Wairimu Njoroge Migue - Widow
10.   The estate of the Deceased was said to comprise the following assets;-
11. LR NO. 195/196 KAREN measuring 1.283 Hectare
12. DAGORETTI/RUTHIMITHU/575 measuring 2.5 Hectares
13. KWALE/CHUINI/106 measuring 11-32 Hectares
14. KWALE/MABOKONI/923 measuring 3.6 Hectares
15. KWALE/MAJORINI/517 measuring 4.0 Hectares
16. Pension Benefits from Ministry of Health
17. Money in Account No. 0460191095346 EQUITY BANK

       TOTAL VALUE  - 10,000,000

        LIABILITIES  - NIL

1. Following the demise of the Deceased Grant of Letters of Administration intestate was on 21^st September, 2016 made jointly to Everlyne Wairimu Njoroge, Patricia Njeri Odhiambo and Jane Wairimu Migue.
2. Thereafter one of the joint Administrators Patricia Njeri Odhiambo filed a Summons for Confirmation of Grant.  Annexed to the Summons for Confirmation was a Schedule of Distribution dated 14^th July, 2017 with the proposed mode of distribution of the estate.
3. It would appear that no beneficiary save for the widow Everylyne Wairimu Njoroge had any objection to the confirmation of the Grant or to the proposed mode of distribution of the estate.  Indeed Yvonne Leah Warya Dusabe signed a consent dated 6^th November 2017 whilst Speranza Wangari Migue signed a consent dated 21^st November, 2017.
4. The Protestor however objected to the proposed mode of distribution

of the estate. She insisted that the property known as LR NO. DAGORETTI/RUTHIMITHI/575 (hereinafter ‘the Dagoretti Property’) did not form part of the estate of the Deceased and was not available for distribution.  According to the protestor the Deceased had gifted this Dagoretti property to the Society of St Pius Fathers, an order of the Catholic Church of which the Deceased was a staunch adherent.

THE EVIDENCE

1. PW1 EDWIN MUNOKO WAFULA is a Land Registrar based at

Ardhi House   in Nairobi.  The witness produced a Search Certificate in respect of LR NO Dagoretti/Ruthimitu/575 which indicated that the registered proprietor of the said property was one Michael Rufus Kigwe (the Deceased herein).  The witness produced a copy of the said search certificate as an exhibit Pexh 1.

1. PW2 Everlyn Wairimu Njoroge was the protestor.  She told the

court that she got married to the Deceased in August 2000

    and produces a copy of their marriage certificate Serial Number  

292320 as proof of the marriage PExh 2.

1. The Protestor told the court that she came into the marriage with a

10 year old daughter whilst the Deceased also had adult children with

  his first wife who had passed away.

1.   The protestor testified that the couple initially resided in the

   property known as LR NO, 195/196 KAREN (hereinafter the

  ‘Karen Property’).  That during the period they resided in the  

   Karen Property they resided in the main house whilst the priests 

   of St. Pius 10^th Catholic Order (previously known as JOSEPH

   SARTO COMPANY LTD) were permitted by the Deceased to

   occupy a wooden house on the same property.

1.    Later due to disagreements with the Children of the Deceased who

   also resided on that property, the couple moved and went to

    live in a rented property on Lenana Road.  That the priests of St

Pius Order also moved out of the Karen Property in November

2005 when they acquired a property of their own.

1.     The Protestor insists that the Deceased donated the Dagoretti

property to the St Pius Fathers to enable them build a Seminary there.  That the Deceased informed her that he had attended a Land control/Board meeting where the transaction was approved.  The Protestor stated that the transfer of the property to the St Pius Fathers was handled by OT Ngwiri Advocate who has since passed away.

1.    According to the Protestor the children of the Deceased were not in

       support of their Father gifting the land to the church.  The Protestors

       asserts that the Dagoretti Property was transferred to the St.

Pius Fathers, that the same does not belong to the Deceased, does

       not form part of his estate and is not available for distribution.  This

       is the reason why she opposes the mode of distribution proposed by

       her co-administrators as the same includes the Dagoretti property

       as an asset available for distribution.

1. PW3 PIERRE CHAMPROUE is the Priest in charge of St Pius 10^th

Order.  He stated that he was aware that the Deceased was desirous

           of giving his Property LR. Dagoretti/Ruthimithu/575 to the

           church which was initially known as Joseph Sarto & Company

            Ltd.

1. PW3 told the court that his predecessor FATHER BELLY signed the

        requisite transfer forms and paid an unspecified amount of money

        to OT Ngwiri Advocates to cover legal work.  PW3 produces

             letters dated 12^th January 2004, 4^th November, 2004 and 8^th

April, 2005 indicating the wishes of the Deceased.

1.     According to PW3 the transfer would have taken place save that

        the Commissioner of Taxes had placed a caveat on the property

        due to some tax arrears which the Kenya Revenue Authority

        were claiming, from the Deceased.

1.    The witness states that the intention and desire of the Deceased to

            transfer the Dagoretti Property to the church was very clear. 

            That the Deceased wrote a letter dated 26^th November, 2008 to

            the Director Legal Affairs confirming that the said property belonged

            to the church.

1. PW1 PATRICIA NJERI ODHIAMBO is one of the daughters of

        the Deceased and a Co-Administrator of the estate.  DW1 told the

        court that her biological mother passed away on 26^th July 1999

        after which in August 2000 the Deceased married the Protestor.

1. DW1 confirms that she filed a Summons for confirmation of Grant

        to which she annexed a proposed mode of distribution of the estate

1. DW1 categorically denies that the Dagoretti Property was gifted

            by the Deceased to the church.  She asserts that the said property

            still belonged to the Deceased at the time of his demise.  DW1

            produces as an exhibit a copy of the Title Document for LR

Dagoretti/Ruthimithu/575 which title indicates that the property

            is still registered in the name of the Deceased.

1.    In the circumstances DW1 contends that this Dagoretti property

       forms part of the estate of the Deceased and as such is available for

       distribution to the beneficiaries.  The witness prays that this protest

       be dismissed in its entirety and that the Grant be confirmed as

       prayed.

1.    Upon conclusion of oral evidence the parties were invited to file their

       written submissions.  The protestor filed the written submissions

       dated 30^th March, 2023, whilst the Administrators relied upon their

       written submissions dated 16^th May, 2023.

    ANALYSIS AND DETERMINATION

1.     I have considered the protest filed in this matter, the evidence

        adduced by the  witnesses as well as the written submissions filed

        by the parties.

1.      It is common ground that the Deceased, the subject of this

         succession cause passed away on 2^nd April 2009.  It is also not in

         dispute that the Deceased was  survived by one widow (his

         second wife)  and four (4) children.  The protestor mentioned that   

         her biological daughter with whom she came into the marriage was   

         not included as a beneficiary of the estate.  However the protestor

         indicated that she did not wish to pursue that issue.

1.     Following the demise of the Deceased Grant of Letters of

       Administration Intestate was made jointly to two of his daughters

    and the widow.  The point of divergence arose regarding the mode

    of distribution of the estate.

1.    In response to the Summon for confirmation of Grant the Protestor

   filed the Replying Affidavit dated 27^th September, 2017.  The

   Protestor objected to the fact that she was not to be given a share

   of the Karen Property which she described as the Matrimonial

   home.  She avers that she only left that property to move into a

   rented house due to hostility form her step children.

1.    The protestor asserts that she paid the rent in the house in Lenana

   and states that she had to leave her well-paying job in order to take       

   care of the Deceased when he fell ill.  As such the protestor

   contends that she is entitled to a share of the Karen Property and  

   prays that in the alternative the Karen Property be sold and the     

   proceeds divided equitably between all the beneficiaries including

   herself.

1. It must be remembered that this is a succession cause.  This is not a

cause for division of matrimonial property.  The protestors contention that the Karen Property was the matrimonial home and her claim to a share in the same cannot be prosecuted and/or determined under this succession cause.

1. The main bone of contention involves the distribution of the property

     known as LR NO. Dagoretti/Ruthimitu/575 which according to

     the Protestor had been gifted by the Deceased to the church and

     therefore did not form part of the estate of the Deceased.

1. The main issues which therefore arise for determination are the

      following:-

1.   Did the Deceased gift the property known as LR NO  

     Dagoretti/Rithimitu/575 to the St Pius 10^th Order of the 

     Catholic Church

1.    Does LR No. Dagoretti/Ruthimitu/575 form part of the

                   estate of the Deceased.

1.   How should the estate be distributed.
2.    It is trite law that ‘he who alleges must prove.”  In law the burden

       of proof lies upon the party who asserts the existence of a fact or

        set of facts.  Section 107

        of the Evidence Act Cap 80, Law of Kenya provides as follows;

“Burden of Proof

“107 (1) Whoever desires any court to given judgment as to any legal or liability dependent on the existence of facts which he asserts must prove that those facts exist.

(2) When a person is bound to prove the existence of any

     fact it is said that the burden of proof lies on that person.”

1. The Protestor asserts that the Dagoretti Property does not form part

of the estate of the Deceased because the said property was gifted by

         the Deceased to St. Pius 10^th Order.

1. The Protestor stated that the Deceased informed her of his intention

     to    gift this parcel of land to the church and further that the Deceased

    told her that he had attended a Land Control Board, meeting at which

    the transfer was approved.  However no minutes of the said land

    Control Board meeting showing approval to transfer the said property

    to the church were produced in Court as an exhibit.

38.   This was a purported gift of registered land.  It was a gift ‘inter vivos’

        which is a gift between a living donor and a living donee.  This refers

to a gift made during the lifetime of the donor.  There is no evidence of a transfer executed by the Deceased, and no evidence of consent form the Land Control Board.  The church has never taken up possession of this Dagoretti property to date.  In the circumstances the gift cannot be said to have been perfected.

39.   In ESTATE OF GODANA SONGORO GUYO Malindi Succ Cause

        No. 15 of 2018 the Court referred to Odunga’s Digest on Civil,

        Law and Procedure Vol (iii) Page 2417 and 5484 (d) where it is

       Stated that:-

“Equity will not come to the aid of volunteer and therefore,

                 if a donee needs to get an order from a Court of equity in

                 order to complete his title, he will not get it.  If on the

                 other hand, the donee has under his control everything

                 necessary to constitute his title completely without any

                 further assistance from the donor, the donee need no

                 assistance from equity and the gift is complete.  It is on

                 that principle that in equity it held that a gift is complete

                 as soon as the donor has done everything that the donor

                 has to do that is to say as soon as the done has within his

                control at those things necessary to enable him, complete

                his title.  Where the donor has done all in his power

                according to the nature of the property given to vest the

                legal interest in the property in the donee, the gift will not

                fail even if something remains to be done by the donee or

                some third person.  Likewise a gift of registered land

                becomes effective upon execution and delivery of the

                transfer and cannot be recalled thereafter even though

                the donee has not yet been registered as a  proprietor.”

[own emphasis]  (see Shell’s Equity 29ED Page 122

                paragraph 3)

40.   PW3 the Priest in charge of St. Pius 10^th Order told the court that

    the Deceased intended to give the Dagoretti, Land to the Church for

    them to build a Seminary.  PW3 told the court that he was not involved

    in the transaction as the matter was handled by his predecessors.

41. PW3 exhibited in court a series of emails and letters between the Deceased, the church and the lawyer Mr. OT Ngwiri.  The witness told the court that the Deceased intimated to his predecessor Father Esporito that he wished to donate a piece of land to the church.  That the Deceased took Father Esporito and showed him the land in Dagoretti. 

42.    PW3 told the court that the church made payments for transfer of the

land to itself.  However no receipts for such payments were ever produced in court.  Indeed PW2 under cross-examination concedes that

‘I do not have any document to confirm that [the church] paid any money towards the expenses of the transfer.”

43. PW2 further asserted in cross-examination that the Dagoretti land was transferred to the church during the lifetime of the Deceased.  However the witness immediately goes on to admit that he has never personally bothered to find out in whose name the Dagoretti land is registered.  He says “I would not be surprised if the land is still in Dr. Migwi’s names because the process was not completed.” 

44. PW2 explained to court that the Dagoretti Property could not be

transferred due to an existing caution placed on the Title.  She stated that the Deceased’s Lawyer severally urged the Deceased to have the caution removed but he failed to act.  This is not the behaviour of a man who wanted to have the property transferred to a third party. 

45. If the church (the donee) had within its possession and control all the

documentation required to complete their title to the Dagoretti Land

then I have no doubt they would have facilitated the transfer of this land themselves.  There is no transfer document signed by the Deceased produced as an exhibit.  Neither has the witness shown any entry in the Title document indicating that the Dagoretti property had been transferred to the church.

46.   I have no doubt that as testified by the protestor and PW1 that the

     Deceased was a staunch catholic.  It may well be that he desired to

     have the Dagoretti Property transferred to the church.  However

     this court can only give effect to what has occurred not to what the

     Deceased ‘intended’ to do.  The Deceased did not write a will

     bequeathing the Dagoretti Property to the church.  Therefore 

     whatever Intentions the Deceased may have had in the absence of

     proof that said intentions were actualized this court cannot give effect

to said intention.  Under cross-examination PW2 states

“We [the church] have never occupied the land when the Deceased was alive or even after his death.”

47.  In RE ESTATE OF GIDEON MANTHI NZIOKA (Deceased) [2015] eKLR Hon. Lady Justice Nyamweya (as she then was stated that “gifts inter vivos must be complete for them to be valid”.

The Honourable judge went on to state as follows;-

“The mere fact of being shown a piece of land and given permission to occupy and use it without more is not adequate proof for a gift ‘inter Vivos’

48.    It is noteworthy that in applying for Grant of Representation to

estate the Protestor admits that she included LR Dagoretti/

Rithimitu/575 as one of the assets left behind by the Deceased.

If the Protestor truly believed that this property belonged to the church then why did she list that property as one of the assets belonging to the estate.

49.    PW1 who was the Land Registrar told the court that a search of the

Dagoretti Property revealed that the said property was still registered

in the name of the Deceased.  It has not been transferred to the church

or to any other party for that matter.

50.   Likewise a copy of the Title Deed for LR Dagoretti/Ruthimitu/575

    which is annexed in the Administrators list of Documents dated 19^th

July 2019 shows that that parcel of land is registered in the name of

    Michael Rufus Migue who is the Deceased in this matter.  Title was

    issued on 4^th February 1980 and re-issued on 10^th March 1991. 

    There is no indication that the Dagoretti Property has ever been

     transferred to any third party.

51.    Based on the evidence availed to this court I find and hold that the

    property known as LR Dagoretti/Ruthimitu/575 was still registered

    in the name of the Deceased at the time of his death.  As such the said

    property belonged to the deceased and forms part of the estate and is

    therefore available for distribution to the beneficiaries.

52.   The Protestor objected to the proposed mode of distribution of the

    estate on the grounds that Dagoretti Property did not form part of

    the estate of the Deceased.  This court has now found that the said

    property does in fact form part of the estate of the Deceased.

53.   I have perused the proposed mode of distribution of the estate as

    contained in the schedule to the Summons for confirmation of Grant

dated 14^th July, 2017 I note that the Protestor has been included in the distribution of the estate.  As stated earlier the objector conceded that her daughter was not one of the beneficiaries of the estate thus this is not an issue for determination.

54. Although the Protestor has not been included in the distribution of the Karen Property she did concede that this property was acquired and developed by the Deceased and his first wife.  That although the Protestor and Deceased resided in Karen for a period of time, she later moved out to a rented property on Lenana Road.  The Deceased followed her to that rented property and that is where he eventually passed away.  As stated earlier the question of whether this Karen Property constituted matrimonial property and the question of what share of said property the protester is entitled to cannot be determined in a Probate cause.  Given that this Karen Property was acquired by the Deceased and his first wife it is only fair that the children of the first wife inherit that property. 

55. The Protestor has not been excluded from the estate.  She has been

allocated as share of the properties and the other assets including the

Dagoretti Land.

56.  All in all I am satisfied that the mode of distribution proposed in the summons for confirmation of Grant is both fair and equitable.  I therefore direct that the Grant be confirmed and that the estate be distributed in accordance with the schedule annexed thereto.

57.     This being a family matter, I make no orders on costs.

Dated in Nairobi this 14^th Day of August 2024.